Kerala High Court
Sarojini vs The Special Tahsildar on 1 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
WP(C) NO. 29597 OF 2016
PETITIONERS:
1 SAROJINI
AGED 82 YEARS
AGED 82 YEARS, D/O ACHUTHAN, RESIDINGAT WEST KOLLERI
HOUSE, POST PUTHIYARA, KOZHIKODE
2 E.K.PADMAVATHY
D/O ACHUTHAN, RESIDING AT SREE PADMAM, MARIKUNNU,
KOZHIKODE
3 SUMITHRA ACHUTHAN
D/O ACHUTHAN,RESIDING AT 3508, ARTHUR DRIVE RUSTON
STATE LOUISINA, UNTIED STATE OF AMERICA REP. BY POWER
OF ATTORNEY HOLDER P.B.BIJU S/O P.K.BALAKRISHNAN,AGED
41 YEARS, RESIDING AT DWARAKA, CHERPU PO, TRICHUR
4 E.K.BHANUMATHI
D/O ACHUTHAN, RESIDING AT DWARAKA, CHERPU PO, TRICHUR
5 E.K.NALINI
D/O ACHUTHAN, RESIDING AT NO.18, 12TH CROSS, IIIRD MAIN
ROAD, VASANTH NAGAR, BANGALORE, KARNATAKA
BY ADVS.
SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS:
1 THE SPECIAL TAHSILDAR
KCRTP, KOZHIKODE
2 STATE OF KERALA
REP. BY CHIE SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-1
3 THE DISTRICT COLLECOR
COLLECTORATE, KOZHIKODE, KOZHIKODE- 673 020
SMT. SUDHA DEVI- SPL.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 29597 OF 2016
2
EASWARAN S., J.
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W.P.(C) No. 29597 of 2016
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Dated this the 1st day of August, 2024
JUDGMENT
The petitioners are legal representatives of one Achuthan. After filing the writ petition, petitioners 1 and 2 expired. Since, the estate of the late Achuthan is substantially represented by petitioners 3 to 5, this Court accepts the prayer of the learned counsel for the petitioners to proceed with the consideration of the writ petition on merits.
2. The challenge in the writ petition is against Ext.P6 order declining a reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act" for short). The facts as disclosed in the writ petition reveal that 0.00928 hectors of land situated in T.S.No.17/14/606/2 of Karyakunnu amsom in Kasaba Village in Kozhikode Taluk were acquired for the purpose of widening the road. The petitioners claim that no notice intimating the acquisition as contemplated WP(C) NO. 29597 OF 2016 3 under the law was served on the petitioners. In view of the dispute regarding title, the issue was referred by the Land Acquisition Officer to the Land Acquisition Reference Court as contemplated under Section 30 of the Act. The said reference was numbered as LAR 6/2010 and was ordered by the concerned Sub Court, a copy of which was received on 26.11.2013 by which the shares were determined. Based on the said order, a cheque application was filed on 24.02.2014 and the amounts were received on 19.03.2014. Thereafter, the petitioners filed Ext.P1 application under Section 18 of the Act, seeking reference to the concerned Court for enhancement of the compensation. By Ext.P2 order dated 22.08.2015, the Special Tahsildar (LA) declined to accept the request under Ext.P1. Thereafter, the petitioners filed Ext.P3, which was also rejected on 29.06.2015 by Ext.P4. Immediately on receipt of Ext.P4, the petitioners again requested the District Collector by Ext.P5 dated 29.07.2015 stating that they had received the amount only on 19.03.2014 and thereafter within a period of eight days, the application for reference under Section 18 of the Act was preferred. It was also asserted that, no individual notice WP(C) NO. 29597 OF 2016 4 under Section 12(2) of the Act was given by the District Collector. However, by Ext.P6 order, the same was turned down.
3. I have heard Sri.P.A.Harish - learned counsel appearing for petitioners and Smt.Sudha Devi - Special Government Pleader (LA) appearing for respondents.
4. Sri.P.A.Harish - learned counsel for the petitioners pointed out that Ext.P6 order is completely erroneous in so far as it does not take note of the scheme of the Act. With reference to second proviso to Section 31(2) the Act, the learned counsel for the petitioners pointed out that unless the person who is interested to make a reference under Section 18, receives the amounts under protest, he cannot prefer an application under Section 18. It is also pointed out by the learned counsel for the petitioners that as required under Section 12(2), the District Collector had not issued any individual notices to the petitioners. The right of the petitioners to receive the compensation amount got crystallized by the order of the Sub Court in LAR No.6/2010 only on 26.11.2013. It is thereafter, on 19.03.2014 that the petitioners received the WP(C) NO. 29597 OF 2016 5 compensation amount under protest and thereafter within a period of eight days, the application under Section 18 was preferred. Therefore, according to the learned counsel for the petitioners, the order passed under Ext.P6 is per se unsustainable and required to be interfered by this Court in exercise of the powers under Article 226 of the Constitution of the India.
5. On the other hand, the learned Government Pleader appearing for the respondents, justified the passing of Ext.P6 order and pointed out that the application under Section 18 was clearly time barred.
6. I have considered the rival submissions raised across the bar.
7. Sub Section (2) to Section 12 of the Act reads as follows:-
12.Award of Collector when to be final.
"(2) The collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made."
WP(C) NO. 29597 OF 2016 6
8. Reading of Section 12(2) reveals that the District Collector is required to issue an immediate notice of this award to such persons interested as are not present personally or by the representatives when the award was passed. No doubt, Section 18 prescribes a time limit for making a reference after the award has been passed by the Collector. Proviso to Section 18(2) reads as follows:-
"Reference to Court:-
(2) The application shall state the grounds on which the objection to the award is taken:
Provided that every such application shall be made,-
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, Sub Section (2), or within six months from the date of the Collector's award, whichever period shall first expire."
WP(C) NO. 29597 OF 2016 7
9. Proviso to Section 18(2) takes care of two situations. Either a person who was present or represented before the Collector at the time of the Award can make an application under Section 18 within a period of six weeks or in other cases within six weeks from the date of receipt of the notice from the Collector under Section 12(2).
10. It is pertinent to note that Section 31 of the Act provides for the payment of compensation or deposit of the same in the Court. Section 31(2) provides that the District Collector can deposit the amount of compensation in the Court to which the reference under the Section 18 would be submitted. However, it is pertinent to note that under the second proviso to Section 31(2) no person who has received the amount otherwise than under protest shall be entitled to make an application under Section 18.
11. In the facts of the present case, it is evident that there was a dispute with regard to the entitlement of the petitioners to receive the shares in the compensation amount. In view of the dispute, the Special Tahsildar (LA) had referred the matter to the Sub Court under Section 13 of the Act. When such WP(C) NO. 29597 OF 2016 8 reference is made, it is incumbent upon the Authority to wait till the reference is answered by the Court in which the shares of the respective parties are clearly determined. Therefore, the petitioners are justified in asserting their rights by pointing out that only on crystallization of their share by order dated 26.11.2013 and on receipt of the amount under protest on 19.03.2014 they became entitled to make an application under Section 18 for reference before the competent Court.
12. Viewed from the above perspective, this Court cannot uphold Ext.P6 order. Admittedly, the petitioners received the compensation only on 19.03.2014. They had preferred the application on 27.03.2014. On a harmonious construction of the provisions contained in Section 12(2) read with Section 18 and Second proviso to 31(2), it becomes evident that the petitioners' application was not time-barred as on 27.03.2014. Hence, it is declared so. Consequently, Exts.P2, P4 and P6 orders are quashed. The 1st respondent - Special Tahsildar (LAA) is directed to take up Ext.P1 application and refer the same before the Sub Court, Kozhikode in terms of provisions contained under Section 18 of the Act as expeditiously as WP(C) NO. 29597 OF 2016 9 possible.
Writ petition accordingly is allowed. No order as to costs.
Sd/-
EASWARAN S. JUDGE Raj.
WP(C) NO. 29597 OF 2016 10 APPENDIX OF WP(C) 29597/2016 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE APPLICATION DATED 27-3- 2014 EXHIBIT P2 A TRUE COPY OF THE COMMUNICATION DATED 22- 8-2015 EXHIBIT P3 A TRUE COPY OF THE COERING LETTER DATED 28-9-2015 EXHIBIT P4 A TRUE COPY OF THE NOTICE DATED 29-6-2015 EXHIBITP5 A TRUE COPY OF THE REPLY DATED 29-7-2015 EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 1-
1-2016
// True Copy // PA To Judge